Responsible Choices about Constitutional Design | Richard Ekins

Constitutional Rights and Constitutional Design is a wonderful book – full of riches, concise, tightly argued, and carefully interwoven. It is itself a model of careful design as well as a study of the absence (or failure) of constitutional design and a prescription for reform, for recasting constitutional adjudication. The stress on design in the book’s title is significant. Authorising judges to review legislation for conformity to open-ended constitutional rights is not an inevitable feature of a civilized polity; it is a choice and a choice that ought only to be made, by constitutional designers, with a clear eye on the costs of so doing and of the considerations that bear on how to implement the choice non-disastrously.

More precisely, the constitutional designer ought to think through the nature of institutions – their capacities and shortcomings – and the dynamics that govern how these institutions will interact. This is what the book argues for and this is what the book itself does. The book makes clear that the rise of judicial review, its rationale and practice, has often simply been haphazard – especially in its American iteration, which has been such an important exemplar. One might add also that more design is needed within the practice of rights adjudication itself, that is more attention to institutional capacity and judicial limits, more reflection on the judicial responsibility.

Quite apart from its main argument, the book is full of little gems. It made me think much more fondly of Kelsen than I’d otherwise been minded to do. It is a masterful guide to the twists and turns of Dworkin’s theory of rights. It critiques Rawlsian public reason by way of the (partly negative) example of Abraham Lincoln. It reorients how one thinks of American constitutional history. And it reveals how judges have thought about a whole host of knotty problems, from violence in video games to the merits of assisted suicide to health insurance and public health care.

The first part of the book explores the nature of constitutional adjudication in comparative constitutional perspective, examining the practice’s main features and doctrines. Yowell notes the essentially legislative character of this adjudication, largely unmoored from positive law. That said, this is partly suppressed and distorted by the legal gloss, by the fact that a court is involved. For the most part, Yowell takes proportionality to collapse to reasonableness. This frames his argument nicely, and is charitable, but I wonder if proportionality does not entail more distortion, more artificial limitation of and confusion about practical reasoning, than he admits. That is, it may artificially limit the ends of legislation or may beg the question against general rules. Likewise, the book suggests, but one might reasonably stress further, the risk that the departure from law that characterises modern rights adjudication will compromise the rights of the vulnerable.

The book demonstrates the capacities that are needed to make reasonable lawmaking decisions, including decisions under the shadow of a vague constitutional right, and also elucidates the relative capacities of the legislature and of courts (whether ordinary or special) in this regard. Strictly speaking, the book is not for or against the institution of judicial review, but it does illustrate some shortcomings that are likely to afflict courts, both in reaching intelligent, justifiable decisions in particular cases and in lawmaking by way of judicial decision over time. The criticisms of judicial reasoning about facts are especially startling, with the book’s case studies illustrating recurring risks of misunderstanding and of hubris, as well as exploring the problematic ways in which trial and appellate procedures intersect with the responsibilities of lawmaking.

The book is not sceptical about courts as such, but it does defend a narrow view of how they can and should reasonably operate, hence the picture of how the trial constitutes an artificial world, bounded by procedural protections and with a narrow but vital task. Yowell affirms the capacities of courts to fairly adjudicate disputes, but shows how far constitutional adjudication is from this role. In the course of this reflection on relative institutional capacity, the book also succeeds in overthrowing the assumed historical narrative about judicial review and justice, rereading the American experience in relation to courts, legislatures and racial equality. The book should shatter judicial self-confidence in constitutional rights adjudication. And it should also constitute a major challenge to future attempts to justify, or expand, the practice of judicial review of legislation.

Let me say a little more about four points. The first is the historical method deployed in the book and its rationale. The book recognises the argumentative force of the prevailing historical narrative. It also sees the importance of reflecting on the historical record as a way to isolate institutional features from present controversies. The analysis of the American record, in particular, draws out some striking points of general application: judges are not always right, they act strategically and may be ensnared by elite culture, public reason can be an apology for tyranny (or at least an obstacle to justice), and judicial mistakes can be calamitous and very hard for any institution effectively to set right. Yowell’s historical analysis is not an alternative to thinking about institutional capacity, but it is a complement. And working over the record helps address assumptions about what is possible or likely. His discussion put me in mind of Jeremy Waldron’s recollection some years ago that his law students at Columbia University flatly refused to believe that Parliament abolished slavery. Note also that the New Zealand historical experience supports Yowell’s analysis in part, with justice for a racial minority (the Maori) secured, fitfully but effectively, over time by way of parliamentary politics. In its discussion of history, but not only here, the book gently displays a welcome, thoughtful mix of moral realism and epistemic humility.

My second point concerns the book’s bracketing of democratic fairness. This is a sound argumentative strategy, I think, and other critiques of judicial review can deploy the book’s analysis. However, the book does raise, or at least powerfully suggest, one important difference between courts and legislatures, which is the taking of responsibility for choices made. This point comes out especially in the discussion of time and entrenchment and judicial mistakes. It is remarkable that courts do not have to answer for their judgments in constitutional adjudication. It is no good saying “but they give reasons!” which in any case, as Yowell notes, is true for legislators too. Courts do not have to take responsibility for their choices or answer for their failures. This is unobjectionable in relation to adjudication properly so-called, but not in relation to lawmaking. The idea of the court as impartial enforcer of the law, or even as negative legislator, obscures the court’s responsibility, in modern rights adjudication, for choosing what the law should be. Structurally it is very hard to get decisions back in front of them, as the book explains, which means that the ultimate lawmaker is neither answerable for its decisions nor well placed to change them. The analogy with the people at large, voting in referenda, is notable, but it is not quite clear why we would want to replicate some of the shortcomings of the people as lawmaker in our institutional structure.

The third point I will discuss is the set of thoughtful, imaginative design proposals in chapter seven. This is an elegant, compelling, careful and yet also provocative way to conclude the overall argument. Effectively, as I read it, the argument is a kind of reductio: if one is to have judicial review, then the reasons for it lead one away from having a court as such, and towards what Yowell terms a Council of Revision. Perhaps this is an argument that we should be more like France – or at least that legislatures should have an upper house. The argument makes clear by this point that what one is structuring is a second stage of legislating. However, I wonder if there might not be reason to try to discipline that council only to evaluate the initial legislative proposal rather than substitute its own? Or is this simply impossible? Relatedly, I am not persuaded by Yowell’s proposal for a judicial research service. I fear this would simply empower courts; their dependence on the research of the parties, and especially on the government, may be (and should be) an important limit on their freedom of action.

Fourth and finally, I wonder how the book bears on our local situation and the trends that characterise it. The UK is, at least for now, subject to rights adjudication by three sets of courts. The character of each of these courts is quite different as are the dynamics that govern their judgments. They make one wonder how the book’s argument bears on international adjudication or on soft review. Is the advantage, such as it is, of judges being external more real in Europe than in the US? Does the history of judicial review in the UK and Europe follow a similar path to the American example? To conclude, there is a powerful democratic argument against judicial review, but it should not proceed in the abstract. Critics and defenders of judicial review will both need to engage with Yowell’s subtle, masterful study of institutional capacities and the objects of government.

Richard Ekins is an Associate Professor at University of Oxford and Head of Policy Exchange’s Judicial Power Project